Superintendent Marla Stephenson provides an update to the ongoing lawsuit brought by John Doe et al. against the Albany Unified School District

• The first “cause of action” was that the plaintiff requested an injunction against the entire school district (grades 1 through 6) for failing to provide 200 minutes of physical education.
• The second “cause of action” against AUSD was a violation of the right to free education because the district charged parents fees for extra-curricular activities.
• The third “cause of action” against AUSD was gender discrimination as it related to the academic achievement gap and a specific charge that AUSD did not provide appropriate levels of exercise for male students.
• The fourth “cause of action” was that AUSD violated the Brown Act by forming committees to advise the Board and not complying with the public notice requirements of the Brown Act.

In the ensuing months, the plaintiff dropped all causes of action except the assertion that AUSD did not provide 200 minutes of physical education to grades 1 through 6, every ten days.

AUSD and CDE requested a dismissal of the lawsuit. It was argued that Education Code Section 51210.1, which the Plaintiff relied upon, did not include a private right of action to bring a lawsuit. It was also argued that the best remedy would be with the CDE – not the courts. Typically, a statute has to indicate that an individual can bring a lawsuit in order to enforce the statute. The Plaintiff claim that Education Code Section 51210.1 creates authority for a person to sue because the statute does not specifically give the school district Board or CDE enforcement powers. AUSD asserted that the claim should have been brought as a writ of mandate rather than as a lawsuit. Writs of mandate are lawsuits that compel a public agency to do something.

On November 30, 2010, the trial court dismissed the lawsuit. It was dismissed because the Plaintiff failed to state a proper claim. Specifically, the trial court found that Education Code Section 51210(g) does not impose a mandatory duty upon school districts to provide 200 minutes of physical education instruction to students in grade 1 through 6, every 10 schooldays. Both AUSD and the CDE argued, and the trial court agreed, that there was no mandatory obligation to provide 200 minutes of physical education instruction per week and that the Legislature merely intended to set broad guidelines for school districts rather than a mandatory duty.

The Plaintiff appealed the trial court’s decision to the Third Appellate Court. The Third Appellate District concluded that individual school districts have discretion to determine how to provide physical education instruction, but districts must provide 200 minutes of instruction for every 10 school days for students in grades 1 through 6. Basically, the Court looked at the language of Section 51210 and found that the use of the term “shall” in the statute means that it is a requirement for Districts. The Court recognized that Districts have discretion to provide more instruction, but not less. They also have discretion to determine how the 200 minutes will be administered as long as they are “conducive to health and vigor of body and mind.”

The Appellate Court disagreed with the trial court’s finding that the Plaintiff does not have a right to enforce Education Code Section 51210. The Appellate Court found that the Plaintiff has a beneficial interest in having the statute enforced and that another opportunity by the trial court to state a claim should be given.

AUSD reviewed the appellate court’s opinion and chose to petition the California Supreme Court to review the decision. The Supreme Court had the discretion to decide to hear it or not. The Supreme Court decided not to hear the AUSD petition in early March, 2011.

Now that the petition has been denied, the Appellate Court has sent the case back to the Superior Court in Sacramento for further handling. Once the Superior Court receives that notification and processes it, it will send a notification to the parties that the case is back in its court system. The Plaintiff will then have a period of time (usually 30 days unless otherwise designated by the Court) to file their amended complaint. Once they file the amended complaint, AUSD will prepare for a hearing on the merits of the petition.

To date there has been no finding that the District is not in compliance with providing 200 minutes of physical education every ten days for grades 1 through 6, nor was that issue even discussed in the appellate court’s opinion.

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